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District Court 8 April 2016

Khoder Addouj v R

[2016] NSWDC 47

Public order & justice offences
CRIMINAL LAW APPEAL ARREST SEARCH SEIZURE RESIST POLICE IN EXECUTION OF DUTY

Citation: Khoder Addouj v R [2016] NSWDC 47
Court: District Court of New South Wales
Date: 8 April 2016
Judge: Judge AC Scotting

Background

The appellant was stopped by police in Oxford Street, Surry Hills, at around 9.50pm on 22 May 2015. After police found steroid cream in his car, he was arrested, handcuffed, and subjected to a strip search in the rear of a caged police vehicle parked in a public street. That process took approximately 30 minutes. During this time, the appellant's Samsung mobile phone sat on the front passenger seat of the car, where police observed it receiving multiple calls and text messages.

After the search concluded, the informant (Sergeant Wall) told the appellant he was no longer under arrest and was free to leave. The appellant retrieved his Samsung phone from the car and unlocked it. The informant then simultaneously demanded the phone and physically grabbed it from the appellant's hand, saying "You are still being searched. Hand over the phone." The appellant moved his hand back, causing the informant to lose his balance. Other officers intervened and the informant forcibly removed the phone.

The appellant was charged with one count of resisting a police officer in the execution of duty under s 546C of the Crimes Act 1900. The Local Court convicted him and imposed a $600 fine. He appealed to the District Court.

  • Whether the informant was acting in the execution of his duty when he demanded and seized the Samsung phone without first giving the statutory warning required by s 203(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
  • Whether the prosecution's reliance on s 203(2) of LEPRA was available, on the basis that the appellant was already complying with, or in the process of complying with, the earlier search.
  • Whether the original search power had in fact ended when the informant told the appellant he was no longer under arrest and was free to leave.

Decision

Judge Scotting allowed the appeal, finding that the conviction could not stand. The core question was whether the informant's demand for the phone was a continuation of the earlier lawful search, or a new direction requiring its own statutory warning. The District Court found it was plainly the latter.

Once the informant expressly told the appellant he was no longer under arrest and was free to leave, the detention and the search of his person came to a clear end. The appellant then retrieved his own phone from the car. The situation had materially changed, and the informant could not treat the fresh demand for the phone as a continuation of the prior search process.

Because the direction to hand over the phone was new, the informant was required under s 203(1) of LEPRA to warn the appellant that he was legally obliged to comply before any offence of non-compliance could arise. No such warning was given. The simultaneous grab for the phone constituted a trespass to the appellant's person and to his property.

The District Court concluded that it could not be satisfied beyond reasonable doubt that the informant was acting in the execution of his duty at the relevant time. Without that foundation, the charge of resisting police in the execution of duty could not be established, and the appellant was entitled to be acquitted.

Orders Made

  • The appeal against conviction is allowed.
  • The conviction and the penalty imposed by the Magistrate are set aside.

Key Takeaways

  • A statutory power of search under LEPRA must be exercised strictly in accordance with its terms; once that power ends, police cannot continue to act as though it subsists.
  • Where a person is expressly told they are no longer under arrest and are free to leave, the search of their person is at an end, and any subsequent demand to produce property constitutes a new direction, not a continuation of the original search.
  • Under s 203(1) of LEPRA, a police officer exercising a power that involves a direction, requirement or request must warn the person they are legally required to comply; absent that warning, resistance to the direction does not constitute an offence under s 546C of the Crimes Act 1900.
  • The s 203(2) exception, which dispenses with the warning requirement where a person has already complied or is in the process of complying, does not extend to a fresh demand made after the original search has concluded.
  • Physically taking property from a person's hand, without lawful authority and without the requisite statutory warning, amounts to trespass to both the person and their property, removing the basis for a finding that the officer was acting in the execution of duty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 546C
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 21, 23, 23A, 24, 201, 203

Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Henderson v O'Connell [1937] VLR 171
- Noordof v Bartlett (1986) 12 FCR 209
- Coleman v Power (2004) 220 CLR 1
- Kuru v State of New South Wales (2008) 236 CLR 1